From Power Of The Purse To Power Of The President

Forbes

a day ago

During the first six months of the Trump presidency, an assertive executive branch has wrested some budgetary power from Congress. Whether this trend continues is an open question, but it is unfolding against a backdrop of now-standard disagreement and dysfunction over how to fund the government for the coming fiscal year. The White House has capitalized on procedural ambiguities and executive tools to assert greater control over spending decisions—raising legal and constitutional questions and the stakes of future budget showdowns.
To be sure, the administration has achieved notable success in advancing its fiscal agenda, including:
While the Constitution grants Congress the power of the purse, this authority does not constitute a legislative monopoly over fiscal matters. The executive branch plays a vital role in administering appropriated funds.
As I have written previously, the Trump administration appears determined to expand that role—at times in ways that raise legal concerns. They have used tactics to delay, cancel, and otherwise not spend funds provided by law. The full impact of those actions may not be clear until the current fiscal year ends and agency chief financial officers issue financial statements. Still, the persistent risk of unilateral funding decisions—and the use of arguably unlawful 'pocket rescissions'—may prompt Congress to reassert its budgetary powers as the scope of such practices becomes more apparent.
Sharing Budgetary Power Through Impoundment Controls
Like other legislation, appropriations bills—whether standalone measures, omnibus packages, or continuing resolutions—are considered and passed by Congress and then sent to the president for approval or veto. Once enacted, the president assumes the constitutional duty to ensure that the law is faithfully executed. The process of obligating and disbursing funds is referred to as budget execution.
Much of the framework governing budget execution is rooted in the power of the purse statutes: the Congressional Budget and Impoundment Control Act of 1974 and the Antideficiency Act. I've written previously about the 1974 Act's impoundment controls, which outline a lawful process for the president to delay or withhold spending of appropriated funds.
Despite President Trump's views that impoundment controls represent an unconstitutional constraint on executive authority, those statutory procedures were followed earlier this year when the White House proposed and the Republican-led Congress enacted a rescission package aimed at reducing funding for USAID and the Corporation for Public Broadcasting.
Whether the executive branch will formally submit additional rescissions or resort to pocket rescissions in the final weeks of FY 2025 remains to be seen.
The Other Power Of The Purse Statute
Budget execution is guided by the Antideficiency Act, prohibiting federal agencies and employees from incurring financial obligations without explicit legal authorization. Dating back to 1870, the law is designed to enforce constitutional separation of powers, ensuring that Congress—not the executive branch—controls how taxpayer dollars are spent. It has been amended and reinterpreted over time.
For example, at the end of the Carter administration, then–Attorney General Benjamin Civiletti issued a pair of legal memos from the Department of Justice (DOJ) offering a narrow definition of the types of government activities that could continue during a lapse in appropriations. Along with subsequent DOJ guidance issued in 1995 clarifying the scope of emergency exceptions, the memos have served as the foundational legal framework for shutdowns.
Since 1981, agencies have generally been barred from obligating funds beyond what has been appropriated or from entering into contracts before appropriations are enacted. Agencies are also prohibited from accepting voluntary services or employing staff, except for activities involving emergencies related to the safety of human life or the protection of property. Unlike the impoundment control features of the 1974 act, the Antideficiency Act includes significant administrative and criminal penalties for willful violations, ensuring a high degree of compliance.
Nevertheless, as discussed in a 2024 paper by Eloise Pasachoff, different administrations have taken inconsistent and sometimes legally questionable approaches to keep parts of the government open during funding lapses. And there is no reliable way for courts, Congress, or the public to assess the legality of these decisions due to the short duration of shutdowns and a lack of transparency.
Could Government Shutdown Rules Be Revisited?
Before the DOJ memos, agencies generally operated under the assumption that they could remain open during temporary funding gaps, based on the belief that Congress did not intend for a government shutdown to result from routine delays in appropriations. While nonessential activities—such as hiring or discretionary travel—were curtailed, core operations typically continued.
Then–Comptroller General Elmer Staats supported that approach, arguing that the Antideficiency Act was meant to prevent overspending and unauthorized commitments, not to bring government functions to a halt. In his view, congressional intent did not support a complete cessation of agency activity during short-term funding lapses.
The DOJ memos effectively created the modern concept of a government shutdown by requiring agencies to halt all non-excepted operations and furlough employees during a funding hiatus, under threat of legal penalties. Notwithstanding the plain language of the Antideficiency Act, another administration could conceivably revisit the memos to reinterpret the scope of executive branch authority to guide shutdown operations and keep favored programs and policy priorities operational while shuttering activities deemed less important.
Congress has made some progress on FY 2026 appropriations, but the risk of a full or partial shutdown remains. Lawmakers engaged in high-stakes budget negotiations should recognize the potential consequences of ceding discretion over government operations to President Trump—particularly given his demonstrated willingness push the boundaries of emergency powers and other executive tools.
A failure to complete on-time appropriations could once again see the balance of budgetary powers swing toward the executive branch. A future shutdown might not only be a fiscal standoff but a test case for reimagining the structure—and constitutional boundaries—of shutdown governance itself.